Words Matter: Lessons From The Essilor Decision And Other Musings

The word "patient" appears 96 times in the Regulated Health Professions Act, 1991 ("RHPA").1 This is not a coincidence or an accident. The RHPA was established by the Ontario government for the very purpose of protecting patients from the potential harms that are inherent in the activities it regulates.2 This includes setting out the requirements that govern individuals who want to practise in one of Ontario's twenty-six regulated health professions and engage in those activities. In addition, it is the statutory obligation of Ontario's health regulators to ensure that those requirements are met and, where they are not, to enforce them for the protection of the public.3

Conversely, the word "customer" appears nowhere in the provisions of the RHPA. Yet "customer" is mentioned 57 times in the Ontario Court of Appeal's decision of the College of Optometrists of Ontario v. Essilor Group.4 In that case, the Court was asked to address the question of whether or not an out-of-province supplier of glasses and contact lenses (the prescription and dispensing of which are regulated in Ontario and defined as "controlled acts" under section 27(2) of the RHPA) would be permitted to supply its products directly to patients located in Ontario without complying with the requirements of the RHPA.

So as not to be guilty of burying the lede, the Ontario Court of Appeal overturned a lower court's decision and held that Ontario's regulatory scheme does not apply to restrain the activities of the British Columbia supplier. In the Court's view, there was not a "sufficient connection" to Ontario to extend the reach of the RHPA to the non-resident company and its activities. However, understanding how the Court reached that conclusion requires close examination and careful consideration by Ontario regulators.

As a provincial statute, the RHPA is subject to the constitutional limitation that a province cannot legislate "extraterritorially". In essence, a province only has authority over matters that fall within its jurisdiction. This territorial limitation flows from the language of section 92 of the Constitution Act, 1867, which limits territorial reach of provincial legislation and states that, "in each Province, the Legislature may exclusively make Laws in relation to" the enumerated heads of power, including, "the Incorporation of Companies with Provincial Objects"5, "property and civil rights in the Province"6, and "generally all matters of a merely local or private nature in the Province".7

These constitutional limits are concerned with the legitimate exercise of state power and the exercise of that power rests on finding that there is a sufficient relationship or connection between the province and persons over whom it seeks to assert authority.8 Consequently, where a health college turns to a court to enforce its regulatory scheme (in this case employing its compliance order...